Published 4:00 am, Friday, April 13, 2001

2001-04-13 04:00:00 PDT Sonoma -- In a pivotal medical marijuana case unfolding in Sonoma County, defendant Kenneth E. Hayes has been portrayed by his attorneys as a compassionate man who earned just $30,000 a year, worked long hours for a noble cause and made free home deliveries for sickly people.

Under grilling by the prosecution, however, Hayes was painted as a director who kept sloppy records for a San Francisco buyer's club, consorted with black- market suppliers and steeply marked up the price of the weed he grew.

Those two portrayals have clashed all week, and Hayes was visibly weary yesterday, his fifth day on the witness stand. The case is the first one in the state since the November 1996 passage of Proposition 215 to put pot suppliers to cannabis clubs on trial.

Hayes and co-defendant Michael S. Foley face felony charges for marijuana cultivation and possession for sale following a May 14, 1999, bust at a rented Petaluma farm, where 899 plants, hashish and a rifle were discovered by sheriff's deputies. If convicted, they each face a maximum penalty of three years in state prison.

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Hayes is the former executive director of CHAMP -- Cannabis Helping Alleviate Medical Problems -- and Foley managed the dispensary of the San Francisco club. Medical marijuana advocates say pot helps alleviate the effects of chemotherapy and promotes appetite in cancer and AIDS patients.

If the two men are convicted, the case could have political reverberations. Medical marijuana advocates have already succeeded in forcing Marin District Attorney Paula Kamena into a recall election, saying she has been too aggressive in pot-related cases. Advocates have four other county prosecutors, including Sonoma's, in their sights.

"I think it is a clumsy attempt to intimidate officials into not enforcing the marijuana laws at all," Sonoma County District Attorney Michael Mullins said of the recall effort. "But I'm going to do my job, period."

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On the stand this week, Hayes vigorously defended his cultivation of cannabis for the club, saying his efforts lowered the costs and ensured quality, pesticide-free "medicine."

"I believed what I was doing was legal," Hayes said. "We were forced to grow inside because we've got some rogue D.A.'s who are preventing us from growing outside."

Although Hayes testified he had the support of law enforcers in Marin and San Francisco, he chose not to tell authorities in Sonoma County, which has a history of hard-nosed prosecution of medical marijuana cases.

To win a conviction, Sonoma County prosecutor Carla Claeys must convince the jury that the defendants were selling marijuana for nonmedical purposes and that he was not the club members' primary caregiver, as he claims. Under Proposition 215, which repealed state criminal penalties for the medical use of marijuana, primary caregivers are allowed to cultivate and possess marijuana for their charges.

Hayes said he had vendors who would place cannabis with him on consignment: they would leave the dope with him, and they would not receive any money until it was purchased by a patient.

Claeys described that as "sales" with "black market vendors" -- who, she said, always used aliases.

Her use of the term "sales" brought repeated objections from Hayes' attorney, Oakland defense lawyer and Proposition 15 co-author William Panzer, who pointed out that the statute allowed Hayes to be reimbursed for the operational costs at CHAMP.

But Claeys said that because of Hayes' lack of receipts for his "Petaluma grow," he was the only one who could keep track of those costs -- implying that it would have been easy for him to make his own deals on the side.

She has also repeatedly mentioned the $3,300 in cash found stashed in a linen closet and the bags of weed strewn about the rural Petaluma house.

She tried to chip away at Hayes' credibility by eliciting testimony from him that he wasn't planning on growing marijuana when he moved to Petaluma in 1998. That done, she had him read aloud several receipts for pot-growing equipment purchased before he moved -- which shows, she said, his true intentions.

Hayes said of his trips to the Petaluma hardware stores that "right from the get-go, there were (CHAMP) patients who wanted to grow their own medicine. It wasn't uncommon for me to make purchases for them."

Claeys has also insisted that it is next-to-impossible for Hayes to be the primary caregiver for all the club's 1,280 members. She pointed out that none of them listed him on the club's medical form as their primary caregiver and that he failed to provide "consistent care," calculating that he spent an average of 1.625 hours per member each year.

Hayes countered that the names listed on the patient forms were friends, neighbors and community members who offered social support.

"The purpose of this caregiver line," he said, "was so we would have additional resources available to us."

At one point, Panzer asked Hayes whether he would repeat his activities, both as CHAMP's director and growing cannabis for its members.

Growing teary in his response, Hayes said, "From where I sit now, hard as it is, I would do it, because there are still people who are sick and dying."

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